The gamble of a federal challenge-- Wayne ACLU Chapter briefed on breaking California same-sex case

By John Minnis Legal News Is there ever a good time not to press for civil rights? As it turns out, yes, when the high court is stacked against you. That is the lesson learned Tuesday, Jan. 12, at a luncheon hosted by the Wayne State University Law School chapter of the American Civil Liberties Union. Giving the lecture at the law school was Jay Kaplan, staff attorney for the LGBT Legal Project of the ACLU of Michigan. Before joining the ACLU-Michigan staff, Kaplan, an alumnus of Wayne Law, worked for 13 years at the Michigan Protection and Advocacy Service, where he founded the HIV/AIDS Advocacy Program. Kaplan's lecture topic was Perry v. Schwarzenegger, the ongoing federal challenge to California's same-sex marriage ban. The case is timely in that the trial began last Monday before federal Judge Vaughn R. Walker in U.S. District Court for the Northern District of California. "There are people who believe this is not a good time for a federal challenge," Kaplan said, "not the time to go before the U.S. Supreme Court." Perry v. Schwarzenegger involves two gay couples' challenge to the California Marriage Protection Act, an amendment to the California State Constitution that outlaws same-sex marriages performed after Nov. 4, 2008. It was adopted as a ballot initiative, Proposition 8, in 2008. Proposition 8 was in response to the California Supreme Court's In re Marriage Cases ruling that state statutes limiting marriage to opposite-sex applicants violated the California Constitution. For the following five months, same-sex couples were allowed to marry in California. That ended with passage of Proposition 8. Several lawsuits were filed challenging the Proposition 8 amendment under the state constitution, arguing, among other things, whether people's rights can be taken away by referendum. But in May 2009, the California Supreme Court, in Strauss v. Horton, held that Proposition 8 was constitutional but maintained that same-sex marriages contracted before its passage remained valid. Three days before the Strauss decision, the American Foundation for Equal Rights (AFER) filed Perry v. Schwarzenegger in the Northern California federal court challenging the validity of Proposition 8 on behalf of the two same-sex couples. Federal cases make strange bedfellows, Kaplan said, pointing out that the couples' attorneys, Theodore Olson and David Boies, opposed each other in the landmark 2000 Supreme Court case Bush v. Gore. Initially, Lambda Legal -- a lesbian, gay, bisexual, transgender (LGBT) civil rights organization -- and the ACLU opposed the federal challenge because they felt that it could do more harm than good if it reached the currently conservative U.S. Supreme Court. Olson and AFER refused to back down, and the ACLU and Lambda have offered legal support. "Everybody who supports LGBT rights," Kaplan said, "would love to see this succeed. It's a risky gamble." An interesting factor in Perry v. Schwarzenegger is that the California attorney general, Jerry Brown, a named defendant in the case, has refused to defend the lawsuit, arguing that Proposition 8 and its subsequent constitutional amendment violate the 14th Amendment of the U.S. Constitution and should be struck down. Instead, the official proponents of Proposition 8, led by State Senate Republican Leader Dennis Hollingsworth, are defending the state in lieu of Attorney General Brown. Judge Walker has allowed the City of San Francisco to intervene in the case. Perry was slated to be the first federal case to be videotaped and shown on YouTube, Kaplan said. However, half an hour before the trial was set to begin, the U.S. Supreme Court ruled to delay broadcasting the trial so that the court could have more time to consider the issue. It is believed the case is being taped for possible later viewing. Kaplan favored public viewing of the case. "It's a good opportunity to have this out in the open," he said. "If the case shows some of the impetus behind this amendment, if the public could see this, it may have an impact." Contrasting Perry v. Schwarzenegger with Brown v. Board of Education, Kaplan said successes in state cases built the groundwork for Brown, whereas Perry starts at the federal level. "This is just the opposite," he said of Perry. Kaplan also discussed current attempts to reverse Michigan's constitutional ban on same-sex marriage passed by voters in 2004. A bill by State Rep. Pam Byrnes, a Washtenaw County Democrat, seeks to put the gay-marriage question back on the Michigan ballot in November. "It's a very daunting task," Kaplan said, pointing out that the bill would have to be passed by two-thirds of the House and Senate -- an impossibility in the Republican-controlled Senate -- before it even got on the ballot. In May 2008, the Michigan Supreme Court ruled that Michigan's ban on gay marriage also covered employee benefits. Recognition of domestic partnerships, the court said, is considered no different from marriage. "Our state Supreme Court basically said this amendment takes everything off the table for gay couples," Kaplan said. He urged the student members of the ACLU to vote in November. "This year really is an important year for civil rights in Michigan," he said. While the ACLU is nonpartisan, Kaplan looked to the Senate elections in November as opportunities for change. The Senate holds a six-seat Republican majority. "This year will be a chance to change all that," he said. Kaplan also discussed partisanship on the state's high court. "The Michigan Supreme Court is nonpartisan on the ballot," he pointed out, "but they are nominated by political parties." He said that during the Gov. John Engler administration, the court moved not only to the right but to the far right. "The court was impenetrable as far as LGBT rights," he said. He noted that the conservative makeup of the court lessened with the defeat of Chief Justice Clifford Taylor in 2008. "Michigan is known, as far as LGBT civil rights groups are concerned, as the lost state," Kaplan said. "I hope we are going to see that change."7 Published: Tue, Jan 12, 2010

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